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Dewan Amir HossaIn Khan and ors. Vs. Nanhak Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.424
AppellantDewan Amir HossaIn Khan and ors.
RespondentNanhak Chand
Cases ReferredRnjab Ali v. Amir Hossein
Excerpt:
court fees act (vii of 1870), section 28 - plaint-insufficient slump--extension of time--further extension after expiry of time originally granted--power of court to extend time ex post facto--civil procedure code (act v of 1908), section 148. - .....on the 16th of february one day too late. the court ordered that a petition for extension of the time fixed, by one day, might-be filed and such a petition, was filed on the 18th february and the case was registered on that date. the defendants contended that the suit was barred by limitation and the court of first instance accepted the plea and dismissed the suit. on appeal by the plaintiff, the learned subordinate judge has upset the judgment of the first court and remanded the case for trial on the merits.2. it is contended in second appeal before us that the learned subordinate judge is wrong, that the court was bound to reject the plaint on the failure of the plaintiff to put in the required court-fee on the 15lh and that the order of the 18th february, even if it could be.....
Judgment:

Chatterjee, J.

1. The plaint in this case was filed on the 8th of February 1905, one day before the prescribed time limit, on insufficient, stamp. The Court granted one week's time for making up the deficit the 15th of February was, therefore, the last day for the purpose. The plaintiff, however, put in the deficit on the 16th of February one day too late. The Court ordered that a petition for extension of the time fixed, by one day, might-be filed and such a petition, was filed on the 18th February and the case was registered on that date. The defendants contended that the suit was barred by limitation and the Court of first instance accepted the plea and dismissed the suit. On appeal by the plaintiff, the learned Subordinate Judge has upset the judgment of the first Court and remanded the case for trial on the merits.

2. It is contended in second appeal before us that the learned Subordinate Judge is wrong, that the Court was bound to reject the plaint on the failure of the plaintiff to put in the required Court-fee on the 15lh and that the order of the 18th February, even if it could be construed as granting an extension of time, was incompetent.

3. It is admitted that the Court could extend the time originally fixed if an application had been made within the 15th February: it is contended, however, that the Court could not grant such extension ex post facto and reliance is placed on the case of Padmanund Singh v. Anant Lal Misser 34 C. 20 (F.B.) : 4 C.L.. 421 :1 C.W.N. 38 : 1 M.L.T. 355. In that case a plaint had been filed on insufficient stamp on the 23rd June and time was given up to the 5th July for making up the deficit; there was no application for extension but the deficit was actually paid on the 9th July on which day the plaint was verified also and then registered; the question put to the Full Bench was whether the Court could after registering the plaint reject it. It was answered in the affirmative but the learned Judges ordered that the plaint might be taken to have been filed on the 9th July and the order rejecting the plaint was set aside. The Chief Justice thought that the order of the 9th July might be taken as granting an extension of the time fixed up to 9th but the majority accepted the application of the appellant to treat the plaint as presented on the 9th when the Court-fee was paid and the plaint verified. This last fact mentioned in the judgment of Mr. Justice Ghose is important for the want of verification was a material defect in the plaint and the suit was considered as_-instituted when the plaint became complete,. Besides there was no application for extension and as pointed out by Mr. Justice Rampini the order to register was made by the Court unconsciously of the default of the plaintiff. The case of Huri Mohun Chuckerbutti v. Naimuddin Mahomed 20 C. 41 relied upon by the lower Court does not apply as there the payment was made within the time fixed by .the Court. The case of Brahmomoyi Dasi v. Andi Si 27 C. 376 comes nearer and is against the appellant but there also was no application for extension and the Court did not think it was making an extension. The above case was referred to with, approval in the case of Hara Kumar Pal Chowhury v. Shaikh Safatullah 9 C.W.N. 844 : 2 C.LJ. 70 but in that case also there was no application for extension of time. The question, therefore, as to whether the Court can extend the time ex post facto has not been authoritatively decided in this Court. There is express decision in the Bombay Court in the case of Bhagwan Das Bagla v. Haji Abu Ahmed 16 B. 20. Mr. Justice Telang, acting on the principle of the decision of the Privy Ciuncil in the case of Budri Narain v. Sheo Koer 17 C. 12 : 17 I.A. 1, held that it was competent to the Court to extend the timelixed under Section 5 f even after the expiry of the time originally granted. That case and the case of Rnjab Ali v. Amir Hossein 17 C. 1 (P.C) are both on the construction of Section 549 of the Civil Procedure Code; the wording, however, shall reject' is common to Section 549 and Section 54 and there is no reason why the same rule of interpretation should not apply. Section 148 of the present Civil Procedure Code expressly empowers the Court to extend anytime fixed by it even after the expiry of the period originally fixed and this we think is legislative recognition of the rule laid down in the Bombay case and the cases on which the same was based.

4. In the present case the default was brought to the notice of the Court which directed the filing of an application for extension and when that was filed the suit was at once registered. 'We think this was an extension and the Court was quite competent to grant it. That being so the provisions of Section 28 of the Court Fees Act operate in favour of the plaint dating back from the 8th of February and the suit is not barred by limitation. The appeal is, therefore, dismissed with costs, one gold mohur.

Vincent, J.

5. I have read the judgment of my learned, colleague and I agree that in the circumstances of this case the appeal should be dismissed with costs for the reasons stated.


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